Massachusetts Appeals Court Pauses Berkshire Museum Sale [Updated]

The battle over the Berkshire Museum’s proposed sale of 40 works from its collection has gone down to the wire.

On Friday, with just three days to go before the first pieces were to hit the block at Sotheby’s, the Massachusetts attorney general appealed a ruling it lost earlier this week attempting to win an injunction to halt the sale of art from the institution, which is based in Pittsfield, Massachusetts.

Later in the day, Joseph A. Trainor, an associate justice on the Massachusetts Appeals Court, granted the motion, placing an injunction on the sale until at least December 11.

“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 weighs in favor of the petitioner,” Trainor wrote.

The attorney general’s office will have the option to file a motion to extend the date of the injunction beyond December 11 so that it can complete its investigation. It is possible that the works could still eventually be sold at auction, but the latest ruling means that further legal proceedings will have to occur before that can happen.

“My clients are pleased that the auction has been halted,” said Nicholas M. O’Donnell, an attorney representing current and former museum members who brought one of the two lawsuits aiming to stop the sale. “They remain alarmed at the Berkshire Museum’s treatment of its members and of the art that it holds in trust for the community.  With the benefit of some breathing room and the continued investigation by the Attorney General, they are hopeful that reason will prevail.”

Elizabeth McGraw, the president of the museum’s board, said through a spokesperson that the decision is “a disappointment for all of us at the Berkshire Museum, and it is a setback for our members, our neighbors, and the citizens of Berkshire County. The auction that held the promise of addressing our museum’s serious financial difficulties will have to proceed without our works, and our plans for the future will be delayed pending the next steps in the legal process.”

Sotheby’s released a statement saying, “We are disappointed in today’s decision, which prevents the sales from going forward despite the carefully reasoned opinion issued by Judge Agostini earlier this week. We have never doubted that the Board of Trustees acted in good faith and was well within their legal rights, and we remain confident that they will prevail in their plans to ensure a bright future for the Berkshire Museum in support of the community of Pittsfield and Western Massachusetts.”

A spokesperson for the auction house said that the Berkshire Museum works that were to be sold have been taken off view but will remain at Sotheby’s “until further notice.”

The attorney general’s office wrote in its filing that the previous ruling, delivered Tuesday afternoon, failed to address the fact that the Berkshire Museum’s plan would violate trusts it holds with donors of works it is aiming to sell and that the sheer magnitude of the museum’s deaccessioning would violate its duties under its charter.

“This sale is unprecedented in terms of the number, value and prominence of the works being proposed, the centrality of these works to the Museum’s collection, and the process the Museum employed to select and dispose of the deaccessioned items,” the attorney’s general wrote in its brief.

The filing recapitulated arguments that the attorney general’s office (AGO) made to Superior Court Judge John A. Agostini in previous filings and in a hearing November 1. Judge Agostini ruled on Tuesday that the museum board had done nothing improper in pursing its plan to raise upwards of $50 million through the sale of two Norman Rockwell paintings and other works in an attempt to shore up its finances, fund renovations, and shift the museum’s focus to a “New Vision” with an emphasis on technology-driven displays.

The museum has vigorously defended its actions, noting that it consulted with community members for two years and evaluated other options for righting its finances, which it has described as precarious.

Through a spokesperson, William F. Lee, an attorney for the museum said, prior to the appellate court’s ruling, “We are disappointed that the Attorney General has decided to continue legal action that threatens the future of the Berkshire Museum, particularly after a very clear legal decision rejected the arguments the Attorney General repeats in this misguided appeal. 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. We look forward to the swift resolution of this matter by the Appeals Court.”

A spokesperson for Sotheby’s said in a statement, also before the new ruling, “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 eleventh hour appeal rehashing the same arguments that were so thoroughly rejected by the court. Sotheby’s remains confident that the sales will go forward beginning Monday and that funds will be raised to allow the Berkshire Museum to serve its community for generations to come.”

Margaret Rockwell, who has been acting as a spokesperson for the Rockwells, said through a spokesperson, “The Rockwell family is very pleased that the Attorney General is seeking 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.”

The first works had been set to hit the block at 4 p.m. at Sotheby’s on Monday, and the museum’s legal team had argued that a pause to the sale would hurt the museum’s ability to sell the work at its top market price, since the auction house has invested in marketing and because the art market is generally considered to be strong at the moment.

“This auction schedule and any harm the Museum argues it may incur if the auction is delayed are problems it created by entering into this contract without first alerting the AGO or seeking court approval,” the attorney general’s filing said, adding at one point, “There is no indication that the Museum is in immediate financial crisis.”

A group opposing the planned sell-off called Save the Art–Save the Museum intends to hold a protest at Sotheby’s headquarters on the Upper East Side of Manhattan on Saturday from 11 a.m. to 1 p.m., and another at the same time outside the Berkshire Museum. A handful of works from the Berkshire Museum are currently on view inside the building, and a large poster of the two Rockwells adorn it at street level.

“We join our clients, the Rockwell family and citizens of Berkshire County, in fully supporting this decision,” Michael B. Keating, a lawyer involved with the first suit aimed at stopping the sale, said, of the court decision. “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.”

Update, November 10, 11:45 p.m. This post has been updated to note that an injunction has been granted.

Update, November 11, 9:20 a.m.: Additional comments from parties involved in the suits have been added. This post will be updated as the story develops.